United States District Court, E.D. Virginia, Alexandria Division
BRIAN C. DAVISON, Plaintiff,
LOUDOUN COUNTY BOARD OF SUPERVISORS, et al., Defendants.
C. CACHERIS, UNITED STATES DISTRICT COURT JUDGE
Phyllis Randall, Chair of the Loudoun County Board of
Supervisors, blocked Plaintiff Brian Davison from what
Plaintiff claims is her official County Facebook page.
Plaintiff alleges that this violated his First Amendment and
Due Process rights. Defendant Randall has moved to dismiss
Plaintiff's claims against her [Dkt. 35], and Plaintiff
has in turn moved for summary judgment on those claims [Dkt.
39]. For the reasons that follow, the Court will deny both
detailed discussion of the events giving rise to this case
can be found in the Court's Memorandum Opinion [Dkt. 11]
granting in part and denying in part a previous motion to
dismiss. As such, the Court repeats here only what is germane
to its rulings on the present Motions.
is a resident of Loudoun County, Virginia, who takes
“an interest in rules of ethics for public
officials.” Compl. [Dkt. 1] ¶ 1. He filed suit
against the Loudoun County Board of Supervisors and its
individual members after the Board allegedly ratified a
subordinate's decision to delete his comments from the
Board's official Facebook page.
original Complaint referenced a previous incident during
which Defendant Randall allegedly blocked Plaintiff from
commenting on her official Facebook page. See id.
¶¶ 24, 33. That incident, however, was not the
subject of any of Plaintiff's claims.
Defendants - including Defendant Randall - moved to dismiss
Plaintiff's original Complaint. In a Memorandum Opinion,
the Court granted that Motion in part and denied it in part.
As relevant here, the Court dismissed Plaintiff's claims
against the individual members of the Loudoun County Board of
Supervisors, but permitted Plaintiff's First Amendment
and Due Process claims to proceed against the Board itself.
In doing so, the Court found Plaintiff had plausibly alleged
that Loudoun County's Social Media Comments Policy,
see Compl. Exh. 11 [Dkt. 1-11], serves to designate
the Board's official Facebook page as a limited public
forum under the First Amendment.
then filed an Amended Complaint [Dkt. 33] adding claims
against Defendant Randall based on the incident mentioned in
Plaintiff's original Complaint. To wit, Plaintiff alleges
that Defendant Randall utilizes an official Facebook page in
connection with her duties as Chair of the Loudoun County
Board of Supervisors. See Am. Compl. [Dkt. 33]
¶¶ 5-6. He claims that Defendant Randall uses her
Facebook page to communicate with her constituents, and
through it “solicit[s] and allow[s] public comments and
discussions.” See id. ¶¶ 5-6, 9. He
further contends that, as an official County social media
website, the County's Social Media Comments Policy
applies to Defendant Randall's Facebook page. See
id. ¶¶ 1, 2, 10; Compl. [Dkt. 1] ¶¶
claims that on February 3, 2016, Defendant Randall blocked
him from posting comments to her official Facebook page.
See Am. Compl. [Dkt. 33] ¶ 15. She allegedly
did so because Plaintiff had made “comments critical of
either Randall's actions or those of other government
officials of Virginia.” Id. Defendant Randall
later acknowledged that she had blocked Plaintiff from her
Facebook page. See id. ¶ 17. Plaintiff argues
that this violated his First Amendment and Due Process
November 17, 2016, Defendant Randall filed a Motion to
Dismiss Plaintiff's claims against her [Dkt. 35].
Plaintiff subsequently filed a Motion for Partial Summary
Judgment [Dkt. 39] with respect to his new claims.
judgment is appropriate only if taking the evidence and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party, ‘no material facts
are disputed and the moving party is entitled to judgment as
a matter of law.'” Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (quoting Ausherman v. Bank
of Am. Corp., 352 F.3d 896, 899 (4th Cir.2003)). An
unresolved issue of fact precludes summary judgment only if
it is both “genuine” and “material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A factual dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on that issue.
Id. at 248. It is material if it “might affect
the outcome of the suit under the governing law.”
Id. “In the end, the question posed by a
summary judgment motion is whether the evidence ‘is so
one-sided that one party must prevail as a matter of
law.'” Lee v. Bevington, 647 F. App'x
275 (4th Cir. 2016) (quoting Anderson, 477 U.S. at
reviewing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the Court “must accept as true all
of the factual allegations contained in the complaint,
” drawing “all reasonable inferences” in
the plaintiff's favor. E.I. du Pont de Nemours &
Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.
2011) (citations omitted). Generally, the Court may not look
beyond the four corners of the complaint in evaluating a Rule
12(b)(6) motion. See Goldfarb v. Mayor & City Council
of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).
“A court has wide discretion to exclude matters outside
of the pleadings” in evaluating such a motion.
Norfolk Fed'n of Bus. Districts v. Dep't of Hous.
& Urban Dev., 932 F.Supp. 730, 736 (E.D. Va.),
aff'd sub nom. Norfolk Fed'n of Bus. Districts v.
City of Norfolk, 103 F.3d 119 (4th Cir. 1996).
Court is mindful that Plaintiff is proceeding in this matter
pro se. A “document filed pro se is
‘to be liberally construed, ' and ‘a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
Plaintiff's Motion for Partial Summary Judgment
first to Plaintiff's Motion for Partial Summary Judgment
[Dkt. 39], the Court notes that the Motion does not cite to
any evidence of record. Indeed, it does not appear that there
is, at this point, any record to speak of in this case.
Plaintiff amended his Complaint on November 3, 2016, to
include for the first time the claims that are the subject of
the instant Motions. Defendant Randall has not yet filed an
answer to the Amended Complaint and no discovery has taken
of record evidence, Plaintiff cites to the allegations of his
own Amended Complaint. Those allegations do not establish a
factual basis for summary judgment. As Defendant notes, many
of Plaintiff's allegations are disputed and, at this
point, remain only allegations. Material issues of fact - for
example, who maintains Defendant ...